JUDGMENT 1. - In this criminal appeal filed by the appellants under Section 394 Cr.P.C., the appellants are challenging the judgment dated 18.10.1986 passed by Addl. Sessions Judge No. 2, Hanumangarh in Criminal Original Case No. 28/1985 whereby the learned trial Court has convicted and sentenced the accused-appellants for committing offence of "murder". The appellant Hasan has been convicted for offence under Sections 302,34, 307/34 and 323 I.P.C. and penalised with life imprisonment under Section 302/34 I.P.C. with fine of Rs. 1,000/- and for offence under Section 307/34 I.P.C. seven years R.I. along with fine of Rs. 500/- and one month R.I. under Section 323 I.P.C. The accused-appellant 1-ledar has been convicted for offence under Section 302 I.P.C. and sentenced with life imprisonment and also fine of Rs. 1,000/- and for offence under Section 307/34 I.P.C., seven years R.I. with fine of Rs. 500/- and for offence under Section 323/34 I.P.C., one month's R.I. The accused-appellant Nadar has been convicted for offence under Sections 302/34, 307 and 323/34 I.P.C. For committing offence under Section 302/34 he has been sentenced with life imprisonment and fine of Rs. 1,000/- and for offence under Section 307, seven years R.I. with fine of Rs. 500/- and for offence under Section 323/34 one month R.I. In default of payment of fine of Rs. 1,000/- and Rs. 500/- imposed for offences under Sections 302, 302/34, 307 and 307/34 LP.C. each of the accused to further undergo sentence of imprisonment for 6 months and 3 months respectively. 2. During the pendency of this appeal, out of three accused-appellant I-Iedar, who was convicted for offence under Section 302 I.P.C. died on 6.3.2003, therefore, his appeal was abated vide order dated 24.2.2010 and by this judgment we are deciding appeal of accused-appellants Hasan and Nadar. 3. Brief facts of the case are that an F.I.R. Ex.P-9 was registered upon statement made by PW-1 Bage Khan on 16.7.1984 at Police Station Suratgarh District Sriganganagar under Sections 307, 147, 148 and 149 I.P.C. In the statement made by Bage Khan PW-1, it was alleged that today in the morning I and my son Iliyas, Yasin, Kala and so also my brother-in-law Sahabdin were working in his agricultural field and that time at about 2 O'clock my daughter Ajmat Bee came there with food and after eating food by us, she returned back to the home. After sometime of leaving place, they heard noise of Ajmat Bee. Upon hearing her noise of cry they immediately rushed to the place from where the noise was coming. When they reached at the place from where Ajmat Bee was crying they saw that accused-appellant Nadar S/o Hasan was running towards village and at that time upon inquiry his daughter told that accused-appellant Nadar has tried to outrage my modesty. Upon this information given by her, Bage Khan and all the persons rushed to the house of Hasan father of accused Nadar for complaint. When they reached at the house of accused Hasan, father of Nadar they saw that upon the way in front of his house all the accused Hasan and his son Nadar and Hedar were standing, as per complainant, he made a complaint to Hasan - father of Nadar that your son has tried to commit rape of my daughter. Upon this complaint, all of sudden accused-appellants Hedar and Nadir took 'gandasi' from their house and inflicted injuries upon his head. It is specifically stated that accused-appellant Nadar son of Hasan inflicted injury upon head by 'gandasi' and he fell down, at that time from inside the house, wife of as an Smt. Noorsen and daughter Niyamat came on spot with iron rod and they also inflicted injuries by iron to him. When accused-appellants were beating him one Sahabdin brother-in-law of Bage Khan PW-1 intervened for protection at that time accused-appellant Hedar (already died) inflicted an injury upon the head of Sahabdin and due to that injury he fell down and became unconscious. At that time accused-appellant Hasan said that do not leave these persons kill them. Further, it is stated by the complainant PW-1 that his son Iliyas made efforts for rescue but he was also assaulted by the accused-appellants, thereafter, upon raising voice by Yasin and complainant party, witnesses Khan Mohd. Fazal and so many other villagers came on spot and all the family members of accused party went inside the house. After incident all the injured persons were taken to the hospital and the day on which the F.I.R. was filed, Sahabdin was alive but he was unconscious. Upon these facts narrated by the complainant Bage Khan, F.I.R. was registered at Police Station Suratgarh under Sections 307, 147, 148 and 149 I.P.C. and Investigating Officer proceeded to make investigation. 4. After incident all the injured persons were taken to the hospital and the day on which the F.I.R. was filed, Sahabdin was alive but he was unconscious. Upon these facts narrated by the complainant Bage Khan, F.I.R. was registered at Police Station Suratgarh under Sections 307, 147, 148 and 149 I.P.C. and Investigating Officer proceeded to make investigation. 4. All the injured person including Sahabdin, Bage Khan, Iliyas were medically examined by the Doctor PW-3 Sahi Ram and after medical examination by the doctor next day on 17.7.1984, at about 9 A.M. in the morning Sahabdin died, thereafter offence under Section 302 I.P.C. was added. The post- mortem of the body of Sahabdin was conducted by Doctor Sahiram PW-3 and as per opinion of the Doctor, Sahabdin died due to shock and hemorrhage in the brain resulting from fracture of right pariato occipital bone of skull. After completion of investigation, challan was filed by the police in the Court of Munsif and Judicial Magistrate, Suratgarh under Sections 302, 307, 147, 148 and 149 I.P.C. from where, the case was committed to the Addl. Sessions Judge No. 2, 1 lanunangarh where trial took place. 5. In the trial, following charges were framed against accused-appellants: (1) Nadar : charge for committing offence under Sections 148, 302/149, 307, 323/149 I.P.C. (2) 1-ledar : charge for committing offence under Sections 148, 302, 307/149, 323/149 I.P.C. (Died during pendency of appeal) (3) Ilasan : charge for committing offence under Sections 148, 302/149, 307/149, 323 I.P.C. (4) Smt. Noorsen : charge for committing offence under Sections 148, 302/149, 307/149, 323/149 I.P.C. (5) Mst. Niyamat : charge for committing offence under Sections 148, 302/149, 307/149, 323/149 I.P.C. 6. After framing above charges, an opportunity to lead the evidence was granted to the prosecution to prove the charge, list of 14 prosecution witnesses was given by the prosecution, but during trial statement of only six prosecution witnesses were recorded namely PW-1 Bage Khan (injured), PW-2 Iliyas (son of complainant - injured), PW-3 Doctor Sahiram, who has medically examined the injured, so also conducted post-mortem, PW-4, Gurudev Singh, Incharge of Maalkhana, PW-5 Abdul Aziz, SHO, Police Station Suratgarh (Investigating Officer) and PW-6 Bhanwar Singh, who has deposited the sealed articles in the Maalkhana at Police Station Suratgarh, so also brought samples to the FSL, Jaipur and took receipt of the articles. 7. 7. After recording statement of six prosecution witnesses including injured eye-witness, doctor and Investigating Officer, learned trial Court proceeded to record the statement of accused persons under Section 313 Cr.P.C. and in the defence the statement of Hasan S/o Ahmed Khan DW-1 was recorded from the side of defence. After recording evidence of both the side, learned trial Court finally heard the matter and vide judgment dated 18.10.1986 while acquitting accused Smt. Noorsen W/o Hasan and Mst. Niyamat D/o Hasan convicted remaining accused-appellant for committing offence of 'murder'. 8. Learned Counsel appearing for the appellants at the threshold submits that prosecution has failed to prove its case for committing offence wider Sections 302 or 302/149 and 307/149 I.Y.C. by the accused-appellant. Further, it is submitted that while disbelieving the case of prosecution two lady accused against whom challan was filed were acquitted by the trial Court because prosecution has failed to prove case against those lady accused namely Smt. Noorsen and Mst. Niyamat. Meaning thereby, the trial Court has disbelieved the half of the testimony of the prosecution witnesses. Further learned Counsel for the appellants submits that during pendency of this appeal, accused-appellant Iledar against whom allegation for inflicting head injury to the deceased Sahabdin is levelled and against whom charge for committing offence under Sections 302, 307/149, 323/149 I.P.C. was made out was convicted for offence under Sections 302 and 307/34 and 323/34 died. Therefore, his appeal was dismissed as abated vide order dated 24.2.2010. Learned Counsel for the appellants submits that he is not disputing the incident which took place on 16.7.1984 but submits that there is no evidence on record to prove offence under Sections 302 or 302/34 and 323/34 I.P.C. against accused-appellant because admittedly the complainant party went to the house of accused party for complaining that accused-appellant Nadar S/o Hasan has sexually assaulted her daughter. Meaning thereby as per prosecution case itself there was no intention or common object of the accused-appellants because it can be gathered from the evidence on record that the complainant party went to the house of accused party for complaining the incident, therefore, the question of common object or intention does not arise. Meaning thereby as per prosecution case itself there was no intention or common object of the accused-appellants because it can be gathered from the evidence on record that the complainant party went to the house of accused party for complaining the incident, therefore, the question of common object or intention does not arise. More so, it emerges from the facts and evidence of the case that due to alleged incident of so called sexual assault by accused Nadar upon Ajmat Bee daughter of the complainant, the complainant party went to the house of Hasan where incident took place. According to complainant party, it is obvious that if any wrong is committed with the daughter, then obviously father has become angry, but prosecution has not proved the said allegation because although Ajmat Bee D/o Bage Khan - complainant was arrayed in the list of witnesses of charge-sheet but did not produce before the Court to prove the fact that Nadar has sexually harassed her. Therefore, in absence of statement of Ajmat Bee, it cannot be said that alleged fact of incident upon which the complainant party went to the house of Hasan was correct but fact remains that quarrel took place in front of house of accused Hasan and Sahabdin was assaulted by accused-appellant Ifedar (already died) and caused head injury by gandasi' and due to that injury Sahabdin died on next day, which is on 17.7.1984. Meaning thereby, in this case, the evidence of common object or intention or motive is totally absent. The occurrence took place at spur of moment, therefore, individual role alleged by the prosecution witnesses is required to be assessed that what offence has been committed by individual accused. In this connection, it is submitted by learned Counsel for the appellant that as per injury report (Ex.P-4) of Bage Khan PW-1, there were five injuries and out of five injuries four are brings and one is incised wound, and all the.injuries were simple in nature. In this connection, it is submitted by learned Counsel for the appellant that as per injury report (Ex.P-4) of Bage Khan PW-1, there were five injuries and out of five injuries four are brings and one is incised wound, and all the.injuries were simple in nature. Similarly, as per injury report (Ex.P-5) there were five injuries found upon the body of PW-2 Iliyas S/o Bage Khan and out of five injuries there were bruises, one injury was lacerated wound and one injury was abrasion and all the injuries were found to be simple in nature and as per testimony of injured eye-witness PW-1 Bage Khan - author of P.I.R., the injury upon the head of Sahabdin was caused by I Iedar none else and due to said injury Sahabdin died on the next day of incident. 9. As per prosecution evidence, the injuries upon the body of PW-1 Bage Khan and PW-2 Iliyas were inflicted by accused-appellants and except accused 1-Iedar, no other accused inflicted injury to deceased Sahabdin. In this view of the matter, as per finding of learned trial Court, accused-appellant Hedar (already died) was tried after framing charge for offence under Section 302 I.P.C. sirniplicitor and other two accused I-lasan and Nadar were tried for committing offence under Section 302/34 I.P.C. Therefore, as per the prosecution story, there was no evidence on record against accused-appellants 1-Iasan and Nadar that they inflicted any injury to the deceased. In this view of the matter, conviction of accused I-Iasan and Nadar for offence under Section 302/34 I.P.C. is not sustainable. Similarly when there is no evidence of motive or intention is in existence and occurrence took place when complainant party came to the house of accused-appellant to make complaint and at that time due to sudden provocation incident took place, therefore, on the basis of this fact alone, it is abundantly clear that the finding arrived at by learned trial Court with regard to committing offence under Section 307 or 307/34 I.P.C. is also not sustainable. Learned Counsel for the appellants while inviting attention towards the statement of PW-3 Dr. Learned Counsel for the appellants while inviting attention towards the statement of PW-3 Dr. Sahiram submitted that even if the evidence of doctor is taken into consideration along with testimony of two injured eye-witnesses then also the case does not travel beyond Section 323/34 I.P.C., therefore, it is argued that as per the judgment of Hon'ble Apex Court reported in 2007 AIR SCW 4631, Harendra Nath Borah v. State of Assam and (2006) 10 SCC 524 , Lachman Singh v. State of Haryana in which Hobble Apex Court has held that if occurrence took place in course of sudden quarrel then no conviction can be made for offence under Section 302/34 I.P.C., so also, the conviction of the accused appellants Ifasan and Nadar for committing offence under Section 307 I.P.C. or offence under Section 307/34 I.P.C. deserves to be quashed and set aside and judgment impugned deserves to be modified while altering the conviction of both accused- appellants I Iasan and Nadar under Sections 323 and 323/34 I.P.C. accused- appellant shall be released on sentence already undergone. 10. Per contra, learned Public Prosecutor as well as learned Counsel for the complainant vehemently argued that in this case although initially challan was filed against five persons out in the trial two women accused were acquitted from the charges levelled against them and for remaining accused-appellants prosecution has proved its case beyond reasonable doubt that they committed offence of murder, therefore, they have rightly been convicted by the trial Court. Learned Public Prosecutor while inviting our attention towards the testimony of PW-1 and PW-2 both injured eye-witnesses submits that on the basis of evidenciary value of these witnesses, it can be said that no error has been committed by trial Court for convicting the accused-appellants for offence of murder. The testimony of these prosecution witnesses is further corroborated by the medical evidence. Therefore, it cannot be said that accused-appellant were wrongly convicted for offence of committing murder. With regard to ground taken by learned Counsel for the accused-appellants that there is no evidence of motive or intention on record, it is submitted that there was intention and motive to kill Sahabdin and to make attempt of murder of complainant because they were complaining that accused-appellant Nadar committed offence under Section 376 I.P.C. by way of sexually assaulting the daughter of complainant Bage Khan. It is also pointed out by learned Public Prosecutor as well as by learned Counsel for the complainant that a separate case under Section 376 I.P.C. was also registered against the accused Nadar in which he has been convicted for committing offence under Section 376 I.P.C., therefore, as per the assessment of evidence on record, it is abundantly clear that the prosecution has proved its case beyond reasonable doubt that accused-appellants are guilty of committing offence of murder. Therefore, this appeal may be dismissed and judgment rendered by learned trial Court may kindly be upheld. 11. We have considered the rival submission made by the parties. 12. In this case, first of all it is required to be observed that to prove the case of prosecution, the important evidence of Ajmat Bee D/o Bage Khan daughter of complainant has not been produced before the Court to prove the fact that Nada' has committed sexual assault upon the daughter of complainant Bage Khan. There is no corroboration of the evidence of injured eye-witnesses PW-I Bage Khan and PW-2 Iliyas for the so called reason for which they were to the house of accused-appellants, the testimony of these two witnesses is not supported by any of the independent witnesses whereas as per prosecution story occurrence took place at a public way in front of house of accused-appellants. Therefore, we have examined the testimony of PW-1 Bage Khan and PW-2 Iliyas independently whether upon perusal of their statement offence under Sections 302, 307 or 307/34 I.P.C. is made out or not. Upon perusal of statement of these witnesses, it emerges that as per their allegations accused-appellants Hasan and Nadar were not held responsible for causing any injury upon the body of deceased Sahabdin. 'I1ne allegation for inflicting injury upon the head of deceased Sahabdin was assigned to accused Hedar who died during the pendency of this appeal. Further, as per prosecution case, quarrel was going between PW-1 Bage Khan, PW-2 Iliyas and accused party upon alleged incident of sexual assault by accused Nadar and for rescue Sahabdin deceased intervened and upon his intervention, accused-appellant late 1-Iedar inflicted head injury. Meaning thereby, there was no quarrel with Sahabdin but all of sudden when Sahabdin made intervention and participated in the incident, he was inflicted an injury upon his head by accused-appellant Hedar (already died). Meaning thereby, there was no quarrel with Sahabdin but all of sudden when Sahabdin made intervention and participated in the incident, he was inflicted an injury upon his head by accused-appellant Hedar (already died). Meaning thereby, a quarrel took place in the spur of moment when complainant party came on spot for making complaint of accused Nadar that he has tried to commit rape. Due to sudden quarrel, occurrence took place and there was no intention for committing offence nor accused party was having weapons in their hands but as per allegation of prosecution when injured PW-1 and PW-2 reached to the place of occurrence at that time, they took gandasi and lathis from their house and inflicted injuries. As per testimony of PW-1 and PW-2 accused-appellant Hasan and Nadar inflicted injury upon their body and those injuries were found to be simple in nature as per evidence of doctor PW-3 Sahiram. In this view of the matter, when evidence of motive and intention is absent in the prosecution. evidence then obviously it can be said that individual role of each accused is required to be seen. We have examined the case from this angle and upon assessment of evidenciary value of PW-1 Bage Khan and PW-2 Iliyas and considering the fact that no other witness except the injured witnesses produced before the Court to prove the prosecution case and accused Hedar against whom charges for offence under Section 302 I.P.C. was levelled, died during pendency of appeal, we are of the opinion that learned trial Court has committed a serious error while convicting the accused-appellant for committing offence under Sections 302/34, 307 and 307/34 I.P.C. When basic ingredients of offence of murder which is intention and motive is absent in this case then obviously judgment of learned trial Court, convicting the accused-appellants for offence under Section 302 or 302/34 so also for offence under Sections 307 and 307/34 I.P.C. 13. In the totality of the circumstances and for the discussions made above, we are of the opinion that upon reassessment of prosecution evidence, no offence under Sections 302/34 or 307 and 307/34 I.P.C. is made out. Therefore, conviction of accused-appellants Hasan and Nadar to the extent of their conviction for offence under Sections 302/34, 307 and 307/34 I.P.C. deserves to be quashed and set aside. Therefore, conviction of accused-appellants Hasan and Nadar to the extent of their conviction for offence under Sections 302/34, 307 and 307/34 I.P.C. deserves to be quashed and set aside. Further upon the re-assessment of evidentiary value and credibility of the statements of witnesses and the circumstance in which the incident took place, we are of the opinion that the accused-appellants can be held guilty for committing offence under Section 323 read with Section 34 I.P.C. "Therefore, this appeal is partly allowed while maintaining the conviction of both these accused-appellants Masan and Nadar for committing offence under Sections 323 and 323/34 I.P.C., and the judgment of learned trial Court dated 18.10.1986 is hereby quashed and set aside for other offences. The accused- appellants have already undergone sentence awarded to them for committing offence under Sections 323 and 323/34 I.P.C. therefore, their bail bonds are hereby cancelled and sureties are hereby discharged.Appeal partly allowed. *******